All too common

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE.

As detailed below, we conclude that indecent acts with another, a violation of Article 134, UCMJ, is not a purely military offense.

This appeal thus continues our inquiry, begun last term in United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009), into what constitutes a “purely military offense.”

Here seems to be the nub of the case and is consistent with Conliffe it seems to me.

Neither the CCA nor the parties to this case have given us a good reason to depart from this elements-based approach, which determines whether an offense is a “purely military offense” by reference to whether the elements of the underlying crime, either directly or by necessary implication, require that the accused be a member of the military.

(emphasis added). Clearly in Conliffe the person had to be an officer, a civilian can’t be punished in civilian court for violating Article 133, UCMJ. Other UCMJ offenses come to mind such as being drunk on duty or misbehavior by a sentinel. It remains to be seen whether the majority elements test will stand the test of time against Judge Baker’s contextual argument. Perhaps in a future deployed civilian case?

Oh, yes. It seems all too common that military personnel like to engage in sexual acts in the presence of others in the same barracks room. Maybe being too anecdotal, but it seems we see this issue come up quite often, although not usually combined with a Article 130, UCMJ, allegation.